One thing, perhaps mentioned, is that when you face the American legal system, you are in the grip of a process that does not give predictable results with the same series of events. The single most important thing each and every of you MUST understand is that it does not matter whether you were "right". I cannot tell you how many times (myself included) people insist upon speaking with the authorities after an event, only to have their words turned on them. Just remember three simple rules: don't talk, don't talk, and don't talk.

Or as our favorite Buddhist is so fond of saying: "Shut the **** up".

"We often joke -- and we really wish it were a joke -- that you will only encounter two basic problems with your 'self-defense' training.
1) That it doesn't work
2) That it does work"
-Animal MacYoung

I have a very, very serious and important question:Do pentagram pendants make for deadly and accurate shuriken?

If so, should they--or the hands that wield them--be registered as lethal weapons?

I got kicked out of Ninja school for being too stealthy and deadly so I can't advise on the efficiency of shuriken. To be honest, if I wanted to stick a piece of metal into someone I'd choose something along the lines of .223 NATO FMJ with some form of AR-15/HK416 as a delivery system.

To be on the safe side though maybe you should pop down the police station and ask for the relevant forms for your deadly hands :-)

Right, let’s assume you’ve taken on board all the points raised before but for whatever reason the matter has gone to court.

If things get to that stage you will probably have engaged counsel. They will be able to advise as to the particularities of your own individual case; and hopefully, you won’t have said/done anything that paints them into a corner, so all I’m going to do here is set out a brief description of the common law trial process and a few tips you may want to take on board.

Common law jurisdictions generally (there are a few exceptions) us the adversarial system.

That means that each party (Prosecution and Defence in a criminal trial; Plaintiff/Claimant and Defendant in a civil trial) decide how they will present their own case. They decide on what witnesses to call, what questions are asked and which legal arguments to run.

The judge is essentially a referee or umpire. Whilst the judge won’t allow a complete free for all (he or she is bound by the law and the rules of evidence/procedure etc.) they don’t decide on how the trial is to be conducted. They may intervene if they think the rules are not being followed but if they take too active a role (‘descending into the arena’ as we say) that may amount to a ground of appeal.

They can ask questions of their own of witnesses but this is meant to be solely for clarification. They shouldn’t ask questions that are designed to make a point for one party or another.

[Contrast this to the ‘Inquisitorial’ system used in some jurisdictions where the judge has total control over the trial, deciding on which witnesses to call and doing the bulk of the questioning]

The first thing to consider is ‘the burden and standard of proof’.

This dictates who must prove an issue and how strong the evidence must be.

In civil trials the burden is initially on the Claimant. If they say you assaulted them then they must prove that you did. If however you wish to run self defence you must at least raise this in your defence. If it is established you used force then you will need to prove this (cf a criminal trial).

The standard of proof in a civil case is ‘the balance of probabilities’ that is to say “Is it more likely than not?” that a particular set of facts is true.

In civil trials it is usual for the parties to agree in advance which facts are and are not in issue. It may be in a self defence case that it is admitted that you used force; the issue will then be: “Were you justified?”

One thing to remember in a civil case is the principle of ‘ex turpi causa’. This essentially means that someone should not be able to win a case where the ‘injury’ (physical or financial) arose out of some wrong-doing on their part.

This is useful because it may be the case that you went too far in your use of force (a kick too many perhaps) which means that bit wasn’t self defence.

However, if it is established that the Claimant was, say, a mugger, then you can use the principle that he shouldn’t be able to claim against you anyway as but for his attempted crime you wouldn’t have had cause to hit him in the first place.

In criminal trials the burden of proof is on the prosecution both to show that you used force AND that it was ‘unlawful’ i.e. NOT self defence. Once the issue is raised the defence don’t have to prove that it was self defence.

The standard of proof is ‘beyond reasonable doubt’ as they say in the movies and the US (In the UK the standard is ‘so that you are sure’ but it amounts to the same thing)

Whilst there is a mechanism for agreeing facts that are not in dispute (stipulations (US) or admissions (UK) between the prosecution and defence generally the whole of the case (bar some minor procedural points e.g. that the dispatcher/CAD room took a 911/999 call and the transcript is accurate etc.) is raised in court. This is so the decision maker (judge or jury) gets to hear the whole story as it were and things make sense in context.

The prosecution goes first. It may be that at the end of the prosecution case, even if their evidence is taken at its highest there isn’t enough for a properly directed jury to convict. The defence can ask that the judge dismisses the case there and then. The judge may do so. If there is a prima facie case though the judge will allow the trial to continue.

It is then for the defence to decide how to proceed (they could if they wanted to still not run a defence and argue to the jury the prosecution case is so weak they don’t have to).

Parties call witnesses.

If you call a witness then you are attesting that they are ‘a witness of truth’. In other words you can only call a witness you want the jury to believe. You can’t call a witness and then try to show they are wrong/lying.

Sometimes however a witness you thought was going to say one thing says something else. Now, you can’t complain just because they gave an answer you don’t like but if they totally change their story then you can ask for them to be treated as a hostile witness. That then does allow you to ask them questions to show they are wrong.

A party calling a witness cannot ask leading questions.

A leading question is one that suggests its own answer OR refers to facts not yet in evidence (people often forget that bit).

So “You were assaulted right?” is a leading question.

However the mere fact a witness could answer “yes” or “no” doesn’t necessarily stop it being leading.

So “Were you assaulted?” may also be a leading question.

The safe route would be: “and did anything happen in the car park?” for example.

Technically that’s objectionable because there’s been no evidence that there are traffic lights.

There should have been a question:

“Is the junction controlled in any manner?”

in there.

This is the rule that leads to those “dumb things said in court” examples.

You may recall this one:

“How was your marriage terminated?”

“By death”

“And whose death was that?"

That seems dumb but technically it would be a leading question to even say:

“Was it your spouse that died?” let alone name them.

In practice you would get away with something like:

“Presumably that was your spouse’s death?”

But the prohibition on leading is so drilled into us, lawyers tend to play it safe.

Sometimes the parties will agree that people can ask leading questions on non-controversial issues to speed things up a bit and judges are usually fine with this.

So

“On the 25th of June last year you were at the Rowdy Yates Bar & Grill with your wife and two of your friends. Is that correct?"

“And then what happened?"

Would be OK

Once the party calling the witness has finished the other party gets to cross examine them.

Now, not only are leading questions permitted they are generally the only type of question asked.

So you can say to a witness:

“You threw the first punch didn’t you?"

And that’s fine.

As a general rule examination in chief has questions like:

“And then what happened?”

and cross examination has questions like:

“What happened was…?”

After cross examination the original party can re-examine. They can only ask questions about matters arising in cross examination. They can’t raise new points.

They are also still restricted to leading questions (although it’s a common fault for lawyers to forget/try to get round that).

Once all the witnesses are finished with the lawyers make their arguments to the judge or jury as to why they should win and then await the decision.

OK so that’s the basics, now for a few pointers as to how to give evidence.

Your own lawyer will advise on whether you should but let’s assume you are going to.

The first thing to remember is that you are out of your comfort zone (although, hopefully, if you’ve read so far, you won’t be).

It is very common though for people to get nervous.

Time seems to drag. Pauses seem like eternity.

It’s almost universal that witnesses speak to fast. Make a conscious effort to speak at what seems like a snail’s pace though and you’ll be ok; even though you’ll feel like you’re talking as if you’ve had a stroke.

Some lawyer will play on this time distortion.

You’ll get to the end of an answer and the lawyer won’t say anything.

Because the time seems so vast you will be tempted to volunteer something to fill the gap.

DO NOT fall for this.

Judges know this tactic and if a question isn’t forthcoming soon they will ask “Do you have any more questions Mr Attorney? Well get on with it then”.

Now although it may seem artificial, whilst the lawyers ask the questions it’s the decision maker (judge or jury) that need to hear the answer so DO NOT address your answer to the lawyer who asked, face the judge/jury and answer to them.

If you ever see experience police officers give evidence they are brilliant at this.

One trick to help you do this is to give evidence standing up and keep your feet pointed towards the jury. That way it’s easier to remember to face them. (this only works in courts where they don’t make you sit down)

Keep your voice up and make sure everyone relevant can hear you.

Don’t get into rows with the lawyer cross examining you. Not only does this look bad, it’s not them you have to convince.

So don’t ask questions like:

“Yeah, well what would you have done?”

You shouldn’t ask questions of the lawyers at all save to clarify issues. So:

“When you say 'the car', do you mean my car or my attackers?” is fine (and you got a nice little point in there)

Be calm and reasonable in the face of questioning. Remember the lawyer may be trying to goad you into looking bad tempered.

One lawyer’s trick is to ask a question where the answer may be a bit discreditable but doesn’t really go to an issue in the case. This is in the hope you will become defensive/hostile and therefore less credible in the eyes of the jury.

The best tactic is to brazen it out.

An experienced police sergeant once did this to me beautifully.

My client was accused of theft. I was trying to establish the police had been a bit hard on arrest to get some jury sympathy.

I asked the officer to deploy his ASP (a type of retractable baton). They make quite a sinister sound in the hush of a courtroom. So far so good.

I then asked:

“And you used that weapon to strike my client quite hard didn’t you?”

The officer’s response?

“Well obviously not hard enough because we had to whack him another half dozen times before he went down”

So not only has he batted my point out of the field the jury are now assuming my guy was on PCP.

One thing that might sound patronising is to remind you to listen to the question and answer that question. That may seem obvious but, with the stress and the need to get your point across exchanges like this are common:

“Could you give the court your full name please?”

“Right, I was drinking in the pub when this big bloke came up and he said…”

Don’t be afraid to qualify your answers if you’re not sure about something.

The following are all useful phrases:

“To the best of my recollection”

“I can’t be sure but I seem to recall…”

“I can’t remember that particular occasion but my usual practice is…”

Don’t dismiss good points made by the other side out of hand (you’ll seem unreasonable/illogical) but still deal with them.

Use phrases like:

“I can see your point but in this instance…”

“That’s possible but not very probable”

etc.

The key thing is to seem calm and reasonable; especially in self defence cases.

Oh and one final point, dress appropriately. Wife-beaters are definitely a no-no.

So if you take that on board you should hopefully be rightly acquitted.

One thing to remember is, as a rule, when people are found ‘not guilty’ people who were actually guilty tend to cheer and punch the air whereas truly innocent people slump and cry with relief.

You might want to bear this in mind in case the authorities are still considering further charges ☺

Ok so that’s it. I hope that people have found this helpful and I’ve de-mystified the process. You should now be able to see through the smoke and mirrors.

Thanks to all for your patience and especially the posters who asked questions/gave feedback.

One thing that was reassuring was people tended to ask questions that related to the next topic I was about to cover. That seems to indicate that there was some logic to the structure of these posts.

This has been a real team effort.

If anyone has any further questions either raise them in a thread or feel free to PM me.

Stay safe y’all and thanks for your company on this journey. Couldn’t have done it without you.

Any points specific to self defense using a weapon like a gun or knife?

Hi

I've avoided getting into any detail re the *carrying* of weapons as that is an area of law that really does vary between jurisdictions.

Having said that the same principles apply. You can use whatever force is 'reasonable proportionate and necessary" in the face of the perceived threat.

Remember that the response is assessed on an objective basis; so you'd need to argue (bearing in mind the points raised about how you get your evidence in on that issue) that your response was justified.

Obviously if you're facing a serious threat and you happen to have a knife, gun or other weapon to hand and you manage to use successfully then all the principles already outlined apply. You may need to argue for instance that just because you had someone at gunpoint they were still a threat (think Tueller Drill) or that you had to stab someone multiple times because your aim was incapacitation and, whilst a single knife wound could ultimately prove fatal, the assailant was till a danger until he bled out.

The mere fact you used an illegally held weapon isn't relevant to self defence as a matter of law (although it may make a bad impression on a judge/jury that goes to credibility) so you could still run self defence even if you were collaterally guilty of some unlawful weapons possession offence.

In jurisdictions where it is lawful to carry weapons you may wish to familiarise yourself with those 'ladder of force' models (stick against fist, knife against stick, gun against knife etc.). They're not the only way of justifying weapon use but they can be a helpful guide.

In essence though the points raised in the previous posts apply generally whether you're going empty hand or you're tooled up like Rambo.

Hey Al
very interesting post both from a fighting perspective and as a law student (to see how it actually gets litigated as opposed to dusty academia). Most of the above, from my meager knowledge, applies in NSW (and probably most of Australia) for anyone else reading from this end of the world. NSW strangely introduced an amendment this year to the (not so uniform) Evidence Act where it is now possible to draw a negative inference from remaining silent, similar, I believe, to what England introduced not too long ago at least I noticed they changed the police caution in "the Bill" to reflect this.

I have seen some whacky court appointed clinician's reports in my work and when I noticed you discuss five step models of violent encounters etc it just made me think about some ads on the web.

I have seen people on the net advertising "expert testimony" for self defence criminal matters. Some of the advertisers don't look like that have combat experience beyond delivering chi blasting seminars or death touch karate, possibly it's just an angle for delivering more cash. Is this kind of evidence presented often, in your experience? I don't think I'd want some moustachioed chi gung practitioner judging if a shoulder throw was excessive to reasonable force from an expert point of view.

I know we have case law here where convictions for manslaughter have been read down from murder on defendants who have hit people to the head, they have fallen and struck their head on the concrete and subsequently died.

Hey Al
very interesting post both from a fighting perspective and as a law student (to see how it actually gets litigated as opposed to dusty academia). Most of the above, from my meager knowledge, applies in NSW (and probably most of Australia) for anyone else reading from this end of the world. NSW strangely introduced an amendment this year to the (not so uniform) Evidence Act where it is now possible to draw a negative inference from remaining silent, similar, I believe, to what England introduced not too long ago at least I noticed they changed the police caution in "the Bill" to reflect this.

I have seen some whacky court appointed clinician's reports in my work and when I noticed you discuss five step models of violent encounters etc it just made me think about some ads on the web.

I have seen people on the net advertising "expert testimony" for self defence criminal matters. Some of the advertisers don't look like that have combat experience beyond delivering chi blasting seminars or death touch karate, possibly it's just an angle for delivering more cash. Is this kind of evidence presented often, in your experience? I don't think I'd want some moustachioed chi gung practitioner judging if a shoulder throw was excessive to reasonable force from an expert point of view.

I know we have case law here where convictions for manslaughter have been read down from murder on defendants who have hit people to the head, they have fallen and struck their head on the concrete and subsequently died.

Hi Carniverous

Glad you found the stuff interesting. The law is certainly a lot more fun when you actually get to the coal face; and I say that as someone who is a complete geek in terms of trawling through the law reports and journals. Of course, for most of your practice, you'll hardly be getting into legal debates. It's more a case of just arguing about who hit who first! etc.

The legals system down under is pretty similar to here in the UK (and indeed most common law jurisdictions). I think you have that slightly weird set up with a few separate territorial jurisdictions and then a federal system on top. it must be fairly standard though as we have a lot of Aussies practising at the English bar with no problem.

Your new act is modelled on the English Criminal Justice Act 1994. That allows a decision maker (judge or jury) to "draw such adverse inferences as appear proper" where someone refuses to answer questions during interview or fails to give evidence in court. So you've still got a, theoretical, right to silence but it "may harm your defence" as it says in the new caution.

As to "experts" giving evidence about use of force, I've never seen that done here (or to be honest heard about it anywhere else).

You may recall from my posts that the 'response' aspect is objective i.e. what would a reasonable person do when facing the perceived threat. Juries are deemed to be the epitome of reasonable people ("The man on the Clapham omnibus" to use the rather charming phrase that we do).

You can only use experts when the subject matter is beyond the purview of everyday experience (e.g. interpreting DNA profiles) and 'what is reasonable force?' is deemed to be something that a jury is competent to decide.

Hence my tips for getting expert evidence in through the back door.

If anyone has any experience or references to such experts actually being allowed to testify in court I'd be very interested to hear about that (you've seen how nerdy I am on this subject). I'd certainly like to learn more about that.

Oh, and the hitting the head scenario is so common the judiciary even have a term for it: "One punch manslaughter cases". Seriously; the term is used as a head-note in the law reports!

Good look with the studying. It's well worth it in the end. it's a pretty fun career.

I had a brief look and couldn't find any LRs with actual reference to experts. Marc Mcyoung is advertising on his website, so I am guessing he'll be a bit hungry if he is relying on this as his source of income.

I do get slightly concerned when Bas Rutten recommends Tabasco Sauce bottles in the anus as a coup de grace to a RNC because "I got a lot of laughs" (wtf?). Mind you there are plenty of youtube heroes advocating execution style curb stomps and other potentially fatal or pre-emptively neck cranking someone who "looks at your girlfriend wrong" kind of macho posturing that will keep you in business forever.

Thanks or your insights, it's an awesome area to get your nerd on. If I do catch some case law while I procrastinate studying for my equity exam I'll let you know.